Multnomah County is petitioning to file a “friend of the court” brief in support of young people who want the Oregon Supreme Court to revive their lawsuit against the state, alleging it has failed to protect its public resources from the effects of climate change.
The county’s legal foray into the climate change case marks the first time a government entity has publicly supported the young plaintiffs’ climate change litigation.
“I am afraid of the climate change we already see in Oregon and in Multnomah County. Record breaking wildfires. An acidifying ocean. Snow melting a full month earlier than when I was a kid,” Multnomah County Chairwoman Deborah Kafoury said Friday. “But I am most afraid because in the face of overwhelming scientific evidence that we are on a runaway train, adults are failing to act. So I am here today, on behalf of Multnomah County, to stand with your children. And with my children, Anna, Jacob and Alexander.”
In January, the Oregon Court of Appeals ruled that the state doesn’t have an obligation to protect public trust resources from the effects of climate change, a defeat for two young plaintiffs who had sued the state under what’s called the common law public trust doctrine.
They had sued the state in 2011, arguing Oregon holds “vital natural resources” in trust for the benefit of its citizens, including the “waters of the state, submerged and submersible lands, islands, shore lands, coastal areas, wildlife, fish, and the atmosphere.”
They further argued that the state has an obligation to protect and preserve these resources and its failure to do so “threatens the health, safety, and welfare” of plaintiffs, as well as present and future generations of Oregon citizens.
The plaintiffs are Ollie Chernaik, now 18, and Kelsey Juliana, who is now 22 and also a plaintiff in the landmark federal climate lawsuit, Juliana v. United States. Represented by the Crag Law Center, they’ve asserted the state has a legal obligation to protect the atmosphere, a public trust resource , by limiting greenhouse gas emissions.
The state argued that the common law public trust doctrine doesn’t extend to the atmosphere and the public trust doctrine doesn’t compel the state to take any affirmative action.
The trial court concluded that only “submerged and submersible lands” are resources encompassed in the public-trust doctrine and that other resources — navigable waters of the state, beaches, shore lands, islands, fish and wildlife and the atmosphere — aren’t public-trust resources.
The appeals court held that the common law public trust doctrine doesn’t impose duties on the state to affirmatively act to protect public trust resources from the effects of climate change.
Petitioning the high court
Chernaik and Juliana now are petitioning the Oregon Supreme Court to review the case, and Multnomah County is supporting that move.
“This court should allow review because many people — current and future Oregonians — are affected by the decision, which makes this an issue of great public importance,” wrote Courtney Lords, an attorney representing the county in its petition made to the Oregon Supreme Court to be recognized as a “friend of the court” in the case. “The viability and future of Oregon’s natural resources, and the critical role sovereigns play in protecting those natural resources for public use are at stake in this case.”
The plaintiffs and the county argue that the Oregon Court of Appeals misinterpreted state law and failed to consider its history.
“That climate change was unknown at the time the early public trust doctrine cases were decided in Oregon does not render the common law incapable of addressing the current condition,” wrote Courtney Johnson, one of the attorneys representing Chernaik and Juliana.
“The Court of Appeals erred by basically taking the ‘trust’ out of the public trust doctrine; without a trust, there is no public trust doctrine,” wrote Lords, the Multnomah County attorney. “The basic framework of a trust creates a fiduciary relationship where a trustee holds title to the property of another for the benefit of the beneficiary.”
The county’s move and the petitions to the Oregon Supreme Court come a week before a worldwide “School Strike 4 Climate” walkout being planned for Friday, with students across the world planning to leave school to protest the lack of action on climate change.
In another development. U.S. Sens. Ron Wyden and Jeff Merkley and U.S. Reps. Peter DeFazio and Earl Blumenauer, all Oregon Democrats, have filed a brief with the 9th Circuit Court of Appeals supporting the federal climate case filed by Juliana and other young plaintiffs.
It urges the court to allow the case to proceed to trial.